Court of Appeal
Criminal Appeal No. 2 of 1986
20th June, 1986
SIR JAMES SMITH P.
SIR ALBERT STAINE J.A.
KENNETH ST. L. HENRY J.A.

Mr. Said Musa for Appellant
Mr. Gian Gandhi, Director of Public Prosecutions

Appeal against conviction for contempt of Court - Section 104 of the Supreme Court Ordinance, Chapter 82 - Order 52 of the RSC England - Part 111 of Court of Appeal Ordinance inapplicable - not an appeal in civil proceedings - Section 24 of Ordinance also inapplicable as proceedings instituted by motion and not by indictment or information laid by DPP - Section 102 of Supreme Court Ordinance contemplates only civil contempt of Court - preliminary objection held - Court has no jurisdiction to hear matter.

REASONS FOR DECISION

On June 10, 1986 we upheld a preliminary objection in this appeal. We stated that we had no jurisdiction to hear the appeal and that we would put out reasons in writing. We now do so.

The Appellant is the printer and publisher of the newspaper "Uhuru". He was convicted for contempt of court in respect of an article published in that newspaper. The contempt of court proceedings were instituted by the Director of Public Prosecutions by notice of motion in accordance with Order 52 of the Rules of the Supreme Court in England. That procedure is available here by virtue of section 104 of the Supreme Court Ordinance, Cap. 82 which is in the following terms:

"104. Subject to sections 101, 102 and 103, the Court shall have the same powers as regards punishment for all contempts, whether criminal or otherwise, as are possessed by the High Court of Justice in England, and the practice and procedure shall be as nearly as possible the same as the practice and procedure in that Court in like case."

Although the procedure is civil in nature, the contempt of court in respect of which it is adopted is criminal (O'Shea v. O'Shea and Parnell ex parte Tuohy (1889) 15 P.D. 59).

Consequently Part III of the Court of Appeal Ordinance has no application because this is not an appeal in civil proceedings. At the same time section 24 of the Court of Appeal Ordinance which confers jurisdiction in criminal proceedings does so only in relation to these proceedings commenced "on indictment or on information laid by the Director of Public Prosecutions." The proceedings in the instant case, as we have indicated, were not instituted in either of these ways but by notice of motion. No jurisdiction therefore arises under this section.

Counsel for the Appellant submitted that section 102 of the Supreme Court Ordinance, Cap. 82 confers jurisdiction on this court. That section is as follows:

"102. An appeal shall lie to any Court, to which appeals from the judgments or orders of the Court may from time to time be made, from any order of a single judge for committal, or for the issue of a writ of attachment or other proceedings for contempt of Court, through disobedience of its judgment or order in like manner as if the order were a judgment or order of the court."

We do not accept the submission of counsel for the Appellant that the words "through disobedience of its judgment or order" qualify only the words "other proceedings for contempt of Court" appearing immediately before those words. Committal and attachment are sanctions which are available for both civil and criminal contempt of court. "Other proceedings" (e.g. sequestration and injunction) are available only for civil contempt of court i.e. disobedience of the judgment or order of the court. The use of the words "through disobedience of its judgment or order" to qualify the words "other proceedings for contempt of court" would therefore be superflous. In our view the words also qualify "committall for contempt of court)" and "issue of a writ of attachment (for contempt of court)". Accordingly the section is limited in its application to orders in cases of civil contempt of court. The section appeared in the laws of Belize in 1958 at a time when in England appeals in contempt of court cases were similarly limited to cases of civil contempt. That position was established in O'Shea v. O'Shea and Parnell ex parte Tuohy (1890) P.D. 59 where it was held that prejudice to civil proceedings was a criminal contempt and that there was no jurisdiction to hear an appear against a writ of attachment issued in respect of the contempt. It is not until the enactment of section 13 of the Administration of Justice Act, 1960 that the anomaly was corrected and a general right of appeal provided. In our view section 102 similarly contemplated appeals only in relation to civil contempt of court.

Counsel for the Appellant also referred us to the Australian case of Fraser v. R; Mereditte v. R. (1985) L.R.C. (Crim) 732 in which it was held that the Court of Appeal of New South Wales had jurisdiction to hear appeals against conviction and sentence for contempt under the summary procedures permitted by Part 55 Division 2 of the Supreme Court Rules of New South Wales. That decision however turns on the particular relevant statutory provisions in New South Wales and is directed not to whether an appeal lies but to whether the appeal which by virtue of those statutory provisions undoubtedly lies, is to the Court of Appeal or to the Court of Criminal Appeal. It is not of assistance in these proceedings. This court is a creature of statute and has only such jurisdiction as is conferred upon it by statute.

It is for these reasons that we upheld the preliminary objection. We express the hope that the legislature will see fit to correct this anomaly.

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